Monday, September 25, 2017

Faith, Wedding Cakes, and the Rule of Law

By Eric Segall

Everyone in the United States may worship
their own God, multiple Gods, or no God at all. We have the right to
believe anything we want without fear of government reprisal. We also generally may refuse to communicate government messages with which we disagree (warnings on dangerous products are an exception to that rule). We are also, in
the majestic words of
the great Chief Justice John Marshall, “a government of laws not men.” This
term the Supreme Court is hearing an important case
implicating these fundamental principles.

Jack Phillips is the co-owner of
Masterpiece Cakeshop. Although he sells his baked goods to gays and
lesbians, he will not make them wedding cakes because doing so is against his
religious conscience. This refusal violates Colorado law
which requires for-profit businesses to serve all customers regardless of
sexual orientation. Phillips seeks refuge in the free speech and free exercise
clauses of the first amendment to the United States Constitution which, in
cases of true conflict, trump Colorado law. He lost in the courts below.

Colorado takes the position in
the litigation that for-profit-businesses do not have to provide specific messages
on their products. If Mr. Phillips had been asked by the plaintiffs to place a
symbol or letters on the cake with an affirmative same-sex marriage message,
the case would, in the words
of Colorado, “present a different record and raise different issues.”

We don't
know what the couple wanted from Mr. Phillips because he told them that he
would not provide them any wedding cake, regardless of the design of the cake. The
judge in the administrative proceedings found
the following: “The undisputed evidence is that Phillips categorically refused
to prepare a cake for Complainants’ same-sex wedding before there was any
discussion about what that cake would look like. Phillips was not asked to
apply any message or symbol to the cake, or to construct the cake in any
fashion that could be reasonably understood as advocating same-sex marriage.”

The
couple did eventually have a cake with a rainbow symbolizing gay pride, but we
don't know if they would have accepted a wedding cake without any message from Mr. Phillips because he never offered such a cake. As I've written before, because we don't know that fact, and because the simple act of providing a wedding cake without a message should not receive first amendment protection, Mr. Phillips should not prevail on his free speech claims which should either be rejected or remanded for further consideration.

As to his religion claims, nothing in Colorado law prevents Mr.
Phillips from praying, worshiping, attending church, or engaging in any
religious ceremony or ritual that he deems necessary to exercise his religion.
Nevertheless, he claims that he cannot fully carry out his faith if he is
required by law to sell his wares to same-sex couples getting married. Mr.
Phillips also refuses to bake cakes for Halloween parties, or sell any products
that celebrate racism, atheism, anti-family values or contain profane messages.

Mr. Phillips is of course allowed
to believe that supporting same-sex weddings violates his faith. But as a legal
matter, that claim needs to be unpacked if it is to be used to authorize him to
violate Colorado law.

Mr. Phillips publicly holds
himself out as a devout Christian. The Bible says nothing, not a word, about
same-sex marriage. Some people argue that the Bible does denote homosexuality a
sin, but this case does not raise that issue because Mr. Phillips is willing to
and has served gay and lesbian customers without objection.

Selling products to customers
does not, in the ordinary sense, implicate religious exercise. Muslim car
dealers sell cars to Christians without implicating faith. Similarly, Catholic
owners of jewelry stores sell rings and bracelets to non-Catholic customers. We
would condemn religious owners of for-profit companies for refusing to serve
people of different faiths and, in the face of state law prohibiting such
discrimination, the federal Constitution would not provide a license to do so.

It does not appear that Mr.
Phillips asks potential customers if they engaged in sexual relations before
marriage, if they plan to have children, or even what faith they practice, if
any. A fair question in this case is why
his faith requires him to single out same-sex couples for special treatment.

Colorado's non-discrimination
law is intended to further the dignity and equality of its citizens, certainly
laudable and compelling purposes. Mr. Phillips' objection to selling his custom
wedding cakes to same-sex couples substantially undermines these goals. The
bare recitation that his conscience is offended, without more, should not
justify allowing him to avoid the requirements of secular law.

Courts should and will accept
the sincerity of Mr. Phillips' claim
that selling wedding cakes to same-sex couples violates his faith. Courts would
also accept someone’s claim that selling wedding cakes to redheads or professional
athletes violates his or her faith. But accepting the sincerity of those kinds of claims does not give them preferred legal
status or transform them into shields to secular laws that have nothing to do
with religion.

We can be a country of religious freedom and one governed by the rule of law. Colorado's anti-discrimination statute has nothing to do with faith, not even a little bit. Mr. Phillips does not have to comply with that law when he is engaging in
prayer, religious rituals, or attending church. But when he is running his for-profit business he should have to comply with secular law. The best way to prevent our government from
interfering with religious liberty is to keep the faith world and the world of
profit separate. Mr. Phillips should lose his case to further both the rule of
law and religious freedom.

I'd be impressed if the Bible saw same-sex marriage coming, wouldn't you? I conceded it might touch on homosexual conduct, but I stand by my statement about same-sex marriage. But I agree the sincerity of his belief about that topic has to be accepted by the Court as sincere.

Given Professor Dorf's Hobby Lobby post-mortems I'm not sure we can even accept sincerity in Masterpiece Cakeshop without further probing exactly what the bounds of those sincerely held religious belief are, and if they are actually infringed in this particular case.

The reply points to my concern -- it uses "say" too narrowly (by implication, male/female marriage to me can be seen as what is accepted, and just that), but yes, certain conduct is barred. People interpret the verses in various ways, but one way to do so is to "say" the sexual conduct is generally barred. The type of conduct marriage would logically include. Again, the implication there is same sex marriage is disallowed. Again, that isn't to say it is the only way to apply those texts.

Professor Dorf, What happens if I own a bakery and bake cakes for everyone but post a large sign saying "Marriage One Man One Woman" in the window. For good measure, to discourage Jewish customers, I hang a second sign saying "Jews Burn in Hell, Snap Crackle Pop". Wouldn't this have a similar effect, but be within by First Amendment rights? Don't say that you don't know the answer to this, I rely on you to know the answer to everything

In response to Michael's questions, I'm tempted to say this is Eric's post, so ask him! But the short answer goes something like this, I think: That probably wouldn't violate state public accommodations statutes as written, if -- engaging a rather odd assumption -- it turned out that notwithstanding the signs, you actually do sell cakes to everyone. A more interesting question would arise if state law DID forbid this sort of thing. Would that violate your First Amendment rights? Unclear. Title VII would forbid an employer from hanging the latter sign as religious harassment in the workplace. (Whether it would forbid the former sign depends on whether you think Title VII's prohibition on sex discrimination forbids sexual orientation discrimination.) Title VII is valid notwithstanding the infringement on speech of employers. I would think Title II or analogous state laws could be upheld as applied to public accommodations. But the cases don't decide such issues so far as I'm aware.

Let's turn this around. Suppose someone owns a bake shop and believes strongly in gay-rights and same-sex marriage. One day a member of the Westborough Baptist Church comes in and says that he wants to buy a unique artisanal cake from the bake shop owner, whose style will clearly identify the bake shop owner as the maker of the cake, to celebrate the Church member's wedding. The Wetsboro Baptist Church member says that as part of his religious practice, same-sex marriage is going to be vocally condemned in the ceremnoy and at the dinner thereafter at dessert time. Can the baker refuse to sell the cake to the member of the Westboro Baptist Church claiming that the use of the baker's unique cake will identify him as the baker and that the baker will be seen as agreeing with the statements at the ceremony that the dinner? My sense from Eric's post is that the answer would be no because to do so would violate religious discrimination laws. Eric is that what you think? Professor Dorf, what are your thoughts?

By the way, would your answers to the above hypothetical be different if the Westborough Baptist Church member requested that the Baker draw a statement with frosting on the cake condemning same-sex marriage? Either way, what is your reasoning?

The baker in that scenario is not reasonably "agreeing" with the statements of the ceremony any more than is a specific pizzeria sends a pizza of special quality that stands out among all pizzas [a vegan pizza of course] to the reception does.

Such at least is Prof. Segall's argument -- a cake is not a 1A expressive item, so to speak, on its own. Here, the couple per his understanding of the facts, never got into a discussion on a specific message on the cake.

A statement condemning SSM is such a message, and the First Amendment protects our right not to speak. A close case perhaps can be imagined (is "Happy Anniversary" enough? a person in a public accommodation can be required to speak in some minimal way, such as polite service to all comers), but "same sex marriage is unholy" is a specific viewpoint with clear content.

Joe, What is your reasoning behind saying that the message on the cake should be considered the baker's rather than the statement of the couple who ordered the cake? Is it because the cake is an artisan and therefore the maker of the cake can be identified from it? Wouldn't people assume that the message on the cake was what was ordered by the couple rather than by the baker who made the cake? After all, it is common knowledge that Baker's place statements on cakes based on orders of the customers and don't decide what the statements are. In other words, what about the hypothetical with a statement of the cake makes that statement that of the baker?

I'm not necessarily saying the message of the cake should be considered the baker's in the sense of implied support of the message itself. Your common knowledge suggestion is quite reasonable on that level. And, a case can be made that a public accommodation can be required to provide such a service without discrimination.

My understanding of Prof. Segall's position is that there is a First Amendment right not to speak. Coerced speech is a problem even if it is clear that the speaker does not agree with the statement. Merely requiring the baker to write "same sex marriage is unholy" is coerced speech with clear expressive content. So, it is different in a certain notable way from merely providing a cake itself.